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Tucker : The Constitution of the United States 367 

to the fact that the colonists tried to employ Indians against the British 
and did so about as far as they were able. He might have contented 
himself with remarking that the general military situation made it impos- 
sible for the colonists to reach the enemy's country, and that there was a 
difference in the use of savages between leading or inciting against regu- 
lar troops and turning them loose upon old men, women and children. 

The second volume opens with an account of Clark's expedition, in 
which the author ascribes to Clark the fact that " when the treaty of peace 
was made at Paris, the boundary of the United States went to the Lakes 
on the North and to the Mississippi on the West," and closes with a dis- 
cussion of the meaning of the American Revolution, in which he recog- 
nizes and endorses our present policy of expansion. An appendix is 
made up of the Declaration of Independence, the Treaty of Paris, and 
Washington's Address on resigning his commission. There is a full 
index. 

John Bigelow, Jr. 

The Constitution of the United States ; A Critical Discussion of its 
Genesis, Development and Interpretation. By John Randolph 
Tucker, LL.D., late Professor of Constitutional and Inter- 
national Law and Equity, Washington and Lee University. Ed- 
ited by Henry St. George Tucker, Professor of Constitutional 
and International Law and Equity, Washington and Lee Uni- 
versity. (Chicago: Callaghan and Co. 1899. Two vols., 
pp. xxviii, 518 ; v, 519-1015). 

The author of these volumes was born in Virginia in 1823, and died 
in 1897. He belonged to the generation of the Civil War and to the 
younger set of men who witnessed an attempt at secession and its failure. 
During his life he occupied a prominent position as a lawyer and a public 
man. He was at one time attorney -general of Virginia, for twelve years 
a representative in Congress and for some years before his death a profes- 
sor in Washington and Lee University. The manuscript of this work, 
left unfinished by the author, was edited by his son. The volumes con- 
tain fourteen chapters, but may be reasonably divided into three parts. 
The first is within the domain of political science or political philosophy ; 
the second part is somewhat historical in character, dealing with the 
origin of the constitutions of England and the United States ; the third 
part is a discussion of the principles of constitutional law. 

The work has many faults, some of which, probably the majority, are 
attributable to the fact that the author seems not to have revised his 
manuscript and that the editor has not corrected even palpable and ob- 
vious errors. If the editor had the right to turn over to the publisher 
his father's unfinished work, he certainly ought to have had the right to 
correct conspicuous blunders which it must be presumed the author him- 
self would not have suffered to stand. Perhaps some of the errors are 
due to inefficient proof-reading and did not appear in the copy at all ; 



368 Reviews of Books 

but by this reference to serious and conspicuous blunders I do not have 
in mind such mistakes as might creep into a carefully edited book, such 
for example, as citing Ham v. Louisiana, instead of Hans v. Louisiana (p. 
787), or Wilton v. Missouri, instead of Welton v. Missouri (p. 543), or 
Brennon's case, instead of Brennan's case (p. 543). 

The chapter on the origin of English institutions is so faulty in de- 
tails, there are so many inaccuracies of statement that, to say the very 
least, the whole is untrustworthy, although the arrangement and organi- 
zation of material show considerable skill as well as some grasp of essen- 
tial principles. A few examples will illustrate the kind of errors that 
frequently occur. The deposition of Edward II. is said to have occurred 
in 1330 ; that of Richard II. in 1400 ; the accession of Henry VII. in 
i486 ; the battle of Bosworth in 1386. Edward I. is said to have sum- 
moned knights to Parliament in 1272. William III. is said to be the 
last monarch to use the veto. The tenure of judges during good be- 
havior is attributed to an act of 3rd William and Mary. 1636 is given 
as the date of Hampden's trial for refusal to pay ship-money. In gen- 
eral, there is such a disregard of correct dates that the reader concludes 
that the chapter was written in the greatest haste and that the writer in- 
tended to revise it in detail. In other respects this portion of the work 
is far from faultless. Its defects seem to be due, in great measure, to 
the fact that the author has not used the latest and best commentaries in 
the preparation of his summary view, but has contented himself with re- 
peating old and worn-out notions of English constitutional development. 
There are no references to Pollock and Maitland's work, or even to the 
convenient resume by Medley which so carefully sums up the results of 
modern research. Reliance on antiquated authorities may account for 
the repeated references to the act De Tallagio non Concedendo which 
Professor Tucker says was passed in 1306. He seems to have used Hal- 
lam somewhat in gathering material for this chapter and there are occa- 
sional references to Stubbs's Charters ; it therefore seems strange that he 
should not have noticed that Hallam in his Middle Ages effectually dis- 
poses of the so-called act De Tallagio non Concedendo as an original 
and authentic document and that all of the more modern authorities 
agree with him in general conclusions. The student of English history 
must strongly object also to the idea which the writer seems to hold — re- 
ferring to De Lolme — that the distinction between Saxon commons and 
Norman barons continued into the sixteenth century : "But we are told 
that the commons bought the lands of the monasteries exposed for sale — 
for the Saxon by his thrift had accumulated wealth. The nobles were 
poor and thus the Saxon commons obtained a foothold upon the land of 
the realm." It is unnecessary, however, to devote more space to an 
examination of this chapter. It ought not to have been written at all ; 
or, if written, the very least to be expected was a careful revision by 
some one before it appeared in print. 

Of the 875 pages included in the two volumes, not counting the docu- 
ments printed in the appendix, about two-thirds are given to constitu- 



Tucker : The Constitution of the United States 369 

tional law rather than constitutional history — in other words, to a state- 
ment of the present organization of the United States and to the judicial 
interpretation of the written constitution. In this portion of the work 
the material is systematically arranged and there is evidence of thorough 
comprehension of important principles. Here, too, there are indications 
that the work was not completed. There are numerous errors which 
ought to have been corrected by the editor, either in the manuscript or in 
the original. For example, the date of Secretary Belknap's impeachment 
is given as 1867. The case of Alabama v. Smith (p. 545) supports ex- 
actly the opposite doctrine from that laid down in the text. The act 
limiting the tenure of office to four years was passed in 1820, not in 1822. 
On page 598 the case to which the author intends to refer in order to 
support his position is not the Cherokee Nation v. Southern Kansas R. R. 
Co., but Fort Leavenworth R. R. Co. v. Lowe. 

Some of the errors are not chargeable to poor proof-reading or hasty 
examination of the manuscript, but to very evident failure on the part of 
the author to examine the more recent cases. Here, again, it may be 
charitably presumed that had the author had opportunity to revise his 
manuscript the greater number of these errors would have been corrected. 
It seems strange, however, that some of the misstatements of fact should 
have crept into a work prepared by an able, experienced and practical 
lawyer. For example, relying on the case of Elk v. Wilkins, the state- 
ment is made that an Indian separating from his tribe and living among 
white people does not thereby become a citizen of the United States. 
The well-known act of 1887 expressly provided that an Indian could 
thus acquire citizenship. The author also declares that a state tax on all 
the receipts of a corporation engaged in interstate commerce is not in- 
valid, provided there is no discrimination against interstate traffic. The 
decisions of the court are so clearly to the contrary, that one wonders 
how it was possible for the writer to make the assertion even in an un- 
revised manuscript. The same is true of the statement that the state 
cannot by contract debar itself from regulating railroad charges. The 
cases cited to support this proposition are not adequate. The courts have 
not gone farther than to say that the legislature can regulate charges, and 
that a mere grant of the right to fix rates does not preclude legislative 
enactment. But that a legislature cannot by express contract deprive 
itself of the right of interference is contrary to both reason and precedent. 

The author's evident leanings toward states' -rights seems to have 
influenced his opinion, even when considering the Constitution as it has 
been interpreted by the courts and as it stands at the present time. 
Possibly it would be more correct to say that he does not desire to sum- 
marize the findings of the courts, but rather to comment freely on the 
Constitution regardless of authority and precedent. We find however con- 
stant and abundant references to decisions and an apparent willingness 
to rely on authority when it agrees with the author's own conclusions. It 
is not surprising to find that he disagrees with the Supreme Court in its 
decision of In re Neagle, and has considerable difficulty in seeing the 



370 Reviews of Books 

reason for decisions in Tennessee v. Davis and similar cases. But it is 
strange that he should assume with confidence the position taken on some 
other subjects, where, to say the very least, he could not be sure that 
his argument would be regarded as sound. He asserts that the United 
States government cannot tax interstate commerce, basing his argument on 
the clause of the Constitution which provides that the citizens of each state 
shall be entitled to all the privileges and immunities of citizens of the 
several states. He maintains that authority to regulate interstate com- 
merce does not give the federal government the right to ' ' force into a 
state contrary to its law, moral or physical disease, or any institution of 
society which the state may forbid. ' ' There is certainly nothing in the 
federal decisions to bear the author out in his first position ; and the 
Supreme Court has not gone farther than deciding that the local police 
laws of the states affecting interstate commerce are valid in the absence 
of congressional legislation ; they have never recognized the right of the 
states to determine what are illegitimate articles of commerce and in- 
imical to public health and safety. The same sort of argument enables 
the author to disagree with the Supreme Court in its decisions concern- 
ing the right of Congress to exclude such material as it sees fit from the 
mails, and one is very distinctly reminded of Calhoun's famous argument 
on the incendiary (Abolitionist) publications, in which he maintained 
that Congress could not declare what should not go through the mails, 
but must recognize the police laws of the states as to what could be in- 
troduced within their limits through the instrumentality of the post-office. 
In accordance with this argument, if Utah should establish a Mormon 
Church and declare that any article denouncing Mormonism was destruc- 
tive of the " order and the peace of society, ' ' the post-office must take 
care not to transmit any an ti -Mormon newspapers to Utah. The whole 
argument is an interesting reminiscence of ante-bellum conditions and of 
ante-bellum prejudices. 

The best portion of the whole work is the one with which the con- 
stitutional lawyer of the Northern states and probably also the student of 
constitutional history will be the least likely to agree. I refer to the his- 
torical statement of events leading up to the adoption of the Constitution 
and the argument in defence of the assertion that the United States is not 
a body politic but "a multiple of units." The writer has evidently 
been a close student of Calhoun and of Alexander H. Stephens. In the 
145 pages devoted to this subject, he does what can be done to prove his 
case. It is not too much to say that he cites almost no evidence except 
that which he wishes to use for his own purposes, that he omits evidence 
which must be taken into consideration in any fair interpretation of the 
times. He quotes, for instance, No. XXXIX. of the Federalist to show 
that Madison believed that " In this relation the new constitution will, if 
established, be a federal and not a national constitution, ' ' but he does 
not quote other portions of the article in which the same writer asserts 
that the new government is to be national as well as federal. If we do 
not find fault, however, with the omission of what might tend to in- 



Rhodes: History of the United States 371 

validate his argument and to destroy some of the historical proofs upon 
which he bases his conclusion, it must be said that he has presented as 
strong a plea as can well be compressed into the allotted space. He 
seeks by abundance of historical evidence to demonstrate that the states 
were separate sovereignties when the Constitution was adopted, and that 
they adopted it as states. The result was the establishment of a Staaten- 
bund and not a Bundesstaat. In spite of this conclusion he seems to 
hold that the Constitution is the supreme law of the land and binding 
upon the states. 

In conclusion it may be said that it is a very difficult task to appraise 
the work in general terms. There are a few serious blunders, there is 
a tendency to theorize when a clear statement of well established principles 
is desirable, and there is occasional evidence of a bias which seems to 
militate against the trustworthiness of some of his conclusions. But 
withal the matter is forcibly handled, and no small portion is written 
with exceptional clearness and strength. On the whole, one is left 
with a feeling of disappointment that the author could not have fin- 
ished his undertaking, made his final corrections and published the work 
himself. 

Andrew C. McLaughlin. 

History of the United States from the Compromise of 1850. By 
James Ford Rhodes. Vol. IV., 1 862-1 864. (New York and 
London: Harper and Brothers. 1899. Pp. xiii, 559). 

Mr. Rhodes has now attained that agreeable position in which a new 
volume of his history is distinctly an "event." The position has its 
responsibilities ; but the present volume offers abundant evidence that the 
author is quite capable of sustaining them. In guiding us through the 
central heat of the Civil War he never loses the clearness of head and the 
calmness of spirit with which he brought us up to the conflagration. At 
times, it may be, his enthusiasm for his bahnbrechende task leads him to 
attempt too much, and in trying to call our attention to the countless 
minor plays of light and shadow he diverts us from the larger outlines of 
the scene. But this tendency, if it exists at all, is venial ; it might 
count for something in a judgment of the work as "mere literature," 
but can hardly have validity from the standpoint of history. 

On the military side the present volume carries the narrative in the 
East from the siege of Yorktown by McClellan to the siege of Petersburg 
by Grant, and in the West from Bragg' s invasion of Kentucky to Sher- 
man's capture of Atlanta. Mr. Rhodes's handling of the military his- 
tory will serve as an admirable corrective to certain ideas that have 
gained a good deal of currency in recent years. Outside of the purely 
technical works on the war there has been a tendency to lay down sum- 
marily that McClellan and Buell were hopelessly incapable, if not abso- 
lutely imbecile ; that Grant outclassed Lee in Virginia as distinctly as he 
did the Confederate generals who opposed him in the West ; and that